On the eve of trial, the National Labor Relations Board tonight announced a settlement in American Medical Response of Connecticut, Inc., 34-CA-12576 — a/k/a/ the "Facebook firing" case. The hearing in the case was postponed once before and scheduled to begin tomorrow, but per the Board’s press release, the parties have resolved the matter:
Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.
The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.
The termination of the employee for undeniably vulgar commentary about her supervisor, on the one hand, and the alleged Weingarten violation in the denial of union representation, on the other, were the "grey" facts that muddied the analysis of this case. It would seem for now that we have been denied a concrete sense of the Board’s developing approach to social media cases.
But we might not have to wait for long. On February 4, the CSEA/SEIU filed an unfair labor practice charge against a Connecticut bus company at the Regional Office for Region 34. Unlike the AMR case and other charges filed by CSEA/SEIU earlier, the charge in Case No. 34-CA-12906 contains no specific allegations that the company improperly disciplined any particular employee. Rather, this charge alleges that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" policies in its employee handbook, including a policy against:
The use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.
Region 34 and the General Counsel’s treatment of what appear to be simpler facts in this case should provide a good deal more guidance about how the NLRB will evaluate social media policies in the future.